Patient Privacy Rights, a non-profit organization dedicated to protecting the privacy of health records, holds an annual Health Privacy Summit each year in June. Last year they started awarding the Louis D. Brandeis Privacy Award to individuals who have made an impact in the field of health privacy. This year, the University of Louisville’s own Mark Rothstein will be one of the recipients of the award.
Rothstein holds the Herbert F. Boehl Chair of Law and Medicine at the University of Louisville School of Medicine, and he also teaches at the Brandeis School of Law of the University of Louisville. He has written or edited 19 books and almost 200 articles and book chapters on bioethics, law, medicine, and public health. He has also acted in an advisory capacity to the Secretary of Health and Human Services on issues relating to health information policy. Besides the work he has done, it is fitting for the award to go to someone from the law school that is named after the Justice. As Rothstein was quoted in a University of Louisville press release: “Brandeis was born in Louisville, and his influence still permeates the city where I live and the university where I work. I am deeply honored to receive an award named after the person whose name is synonymous with privacy.” He is alo married to Laura Rothstein who has done more to bolster Brandeis in his home town of Louisville than anyone else.
Rothstein will be given the award during the third annual Summit which will be held at the Georgetown University Law Center on June 5th and June 6th. The theme for this year’s Summit will be “The Value of Health Data vs. Privacy — How Can the Conflict Be Resolved?” There will be many other speakers there besides Rothstein–including Brandeis biographer Mel Urofsky. I noticed that they posted videos of the speeches of last year’s recipients. I’ll update this post if they do the same this year.
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The Mysterious Robert Harlan
I am a little late in writing about this, but I only just discovered it today.
Smithsonian Magazine runs a very interesting blog called Past Imperfect, which describes itself as “history with all the interesting bits left in.” In December 2011, Gilbert King posted an article called “The Great Dissenter and His Half-Brother,” which was about the relationship between John Marshall Harlan and Robert James Harlan. The story of Robert Harlan is a fascinating one and Mr. King does a good job of telling it. Harlan, who was half-white and half-black, was raised as a slave in the Harlan family, although he was treated better than the family’s other slaves. He was tutored by two of John’s brothers and was given the latitude to run his own businesses, where he did so well that he was able to buy his freedom. Afterwards he went out west to California, where he made a fortune either by prospecting or gambling, and then settled down in Cincinnati, where he became one of that city’s prominent citizens.
The exact nature of the relationship of the two Harlans has long been a source of fascination to historians, especially given the Justice’s complicated attitudes towards slavery and race over his life. Most historians have assumed that they were half-brothers, and Mr. King flatly states it as a fact. Unfortunately, it does not appear to be true. Harlan biographer Linda Przybyszewski was so interested in this question that in 2001 she determined to get to the bottom of it. She arranged for a DNA test to be run between Louis R. Harlan, a distant cousin of John, and Robert Jackson Harlan, Robert’s great-great-grandson (and also, interestingly, a lawyer.) The test, as an article in the Cincinnati Enquirer puts it, “show[s] that it is unlikely the men were related.”
But don’t let that stop you from reading the article. Robert Harlan’s story is still fascinating, and one that illuminates a lot about John Marshall Harlan’s life as well.
(I have one other small quibble about the article. Mr. King gets some of his information from John’s wife, Malvina’s, memoirs, and then states in his bibliography that the memoirs are unpublished. Not true. Justice Ruth Bader Ginsburg helped convince Random House to publish the book with an informative afterword by Linda Przybyszewski in 2001, which was right around the time she got the results of the DNA test. It too is a great read.)
Update: At the beginning of her article “Wronged in Her Dearest Rights: Plaintiff Wives and the Transformation of Marital Consortium, 1870-1920,” (31 Law and History Review 61-99, available online but only with a subscription to Cambridge Journals Online) Kimberley A. Reilly relates another incident from Robert Harlan’s life. Apparently Harlan had his share of problems with the ladies…
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In an earlier post I discussed materials I had found in the Jefferson County Historical Society relating to Louis D. Brandeis’ uncle and and his family’s residence in Madison Indiana. I ran out of room before I could discuss what was for me the big find. Back in the 1930′s, a journalist named Charles E. Heberhart produced a weekly local history column for the Madison Courier called They Say and Do in the Country. The Historical Society reproduced these columns in a number of large notebooks and have them out for ready reference. I found a number of columns that dealt with Brandeis in one way or another but most of them just reprinted information that I had already gotten from other sources. One column, however, was a treasure trove of new information.
There lived in Madison at the time of the Brandeis’ arrival, a young man by the name of John Lyle King. (Heberhart calls him Henry Lyle King for some reason.) King was a lawyer who later became a member of the Indiana House of Representatives before moving to Chicago in 1860 and becoming City Attorney there. Mr. King was also a prodigious diary writer, having produced 11 volumes during his lifetime. The volumes have never been published, which is a shame because they sound like a great read. Someone named William W. Brewer, Jr. has posted excerpts online and they paint a fascinating picture of what life in Madison during the 1840′s must have been like. In them, Mr. King comes across as a bored young intellectual, given to feuding with his friends and falling head over heels with every woman he meets, including at one point a 14 year old passing through town on her way to Jamaica.
In 1849, when Brandeis’ father Adolph came to Madison, looking for a place for all the Brandeises, Dembitzes and Wehles to live, he immediately made the acquaintance of John Lyle King, who remained a loyal friend of the families the whole time they lived in town. And of course he wrote about them in his diaries. I had seen a quote or two from the King diaries in various Brandeis biographies, but Heberhart excerpts what seems to be all references to the Brandeises in his column. There are not any earth shattering revelations but the anecdotes are interesting and give a good sense of what life in a small Indiana town must have been like for these cosmopolitan and newly arrived Bohemians. I cannot reproduce all the entries here, but I will show what I think are the best ones.
April 14, 1849: Brandeis, my Bohemian acquaintance, was in this afternoon, and talked to me about himself and his friends who are coming to the United States. He is betrothed to a maiden who is sister to the boy he wishes to have read law in our offices…He presents her as accomplished, but not beautiful. He says he wishes I understood German so he could read me her letters. She is 19, and he is 21. Her father is a physician and emigrates, too. His brother-in-law speaks seven languages. The boy has been reading Roman law in Prague, speaks and writes Latin, and works logarithms in his head.
[Note: this "boy" would be Lewis Dembitz, Brandies' uncle and the man who would inspire him to become a lawyer.]
June 1, 1849: My acquaintance Brandeis has been in again. He left this evening, having at last succeeded in renting a house to which the families will be brought from Cincinnati where they came six weeks ago from Austria. Two of the gentlemen of the family were him and are gentlemen, intelligent, shrewd looking ones. I shall be glad when they come. They will be of some advantage to me, both in the way of company and probably of business. They talk of the young man reading law with us. [Note: Dembitz ended up staying in Cincinnati.]
Monday, June 11, 1849: Wrote an advertisement for Dr. [Samuel] Brandeis for the Courier. I think him an accomplished physician for one his age. They both seem to have taken quite a liking to me. They invited me to make myself familiar in their families.
Wednesday, June 20, 1849: The Brandeis and Wehle crowd are domiciled next door to the Moore houses. I hoped to get a glimpse of some of the ladies, but the twilight shades deepened around too much into dimness to give me a good sight.
June 29, 1849: Adolph Brandeis was in this morning and talked to me about the ladies of their families. He says the doctor’s intended is the handsomest of the three girls, but that his betrothed is the cleverest and the best educated. She was born in Poland, mixed with the aristocracy, was educated in Prussia, has traveled much, and is proficient on the piano. They are now at work in the kitchen as they cannot obtain servants. In Bohemia, they had eight.
Thursday, July 5, 1849: Abels, one of the Bohemians, was in this afternoon and gave me an account of the Hungarian troubles, which correspond with the account in Blackwood. By the way, Dr. Brandeis made a fair pun the other day. I informed him I was the son of temperance. He replied, “You can drink nothing, but I hope you won’t repudiate Brandeis.”
Friday, July 13, 1849: Mr. Wehle was in this morning. Nothing worth noting except at twilight, sitting at Dr. Brandeis’ door, Adolph walked up with two of the ladies on his arm. Miss Dembitz and Miss Wehle, to whom I was introduced, and had a light broken speech with them for a minute or two. They dress in a very ordinary way, but otherwise must be accomplished ladies. I shall meet them soon at the house.
Tuesday, July 24, 1849: At Helen Corey’s this evening. I invited Helen to call with me on the Bohemians. Helen and I started to Wehle’s home. At the door, the elder Wehle received us. He was embarrassed and taken by surprise, and it looked as if we were not to be invited in. Adolph, inquired for, was out. I asked if we could see the ladies. Was told that they were in their chamber. But while talking, Miss Dembitz made her appearance at the door. Introductions followed. Then in. The younger Wehle, who is most au fait in social matters, was not then in, but made his appearance before we left. The ladies, considerably at ease, took interest in our conversation, and tete-teted with as much spirit as their meager English would allow. We had Miss Caroline Wehle, Miss Frederique Dembitz, and Miss Ida Weiner (governess) in the room. Miss Frederique is inclined to embonpoint, has a dark complexion, intelligent physiognomy, and substantial parts of a character, and is said to be finely educated. Caroline Wehle is smaller, younger, is of a type of gaiety, handsome, animated, and probably a little coquettish. She is the one I would fall in love with, and I should conjecture much more capable of inspiring the tender than Miss Frederique. She is the doctor’s betrothed…It amuses me and entertains me to hear the ladies talk. They are a little shy to use our speech too. Their coyness and diffidence keeps the imagination active enough to render them decidedly interesting. Helen spoke in French to them, and they were so agreeably surprised to hear a language they understood that their gratification spontaneously revealed itself in joyous exclamations, and they followed us to the gate with a new-born fervor expressing the happiness they would have in seeing her again. Helen was favorable impressed and invited them to see her and use her piano until their own arrived. [Note: among the possession the families brought with them from Europe were two (!) grand pianos, but apparently they had not arrived in Madison yet.]
Friday, September 21, 1849: Sallie Gale and I called on Dr. and Adolph Brandeis and their ladies. They live upstairs in Dr. Watts’ on Main Cross, above the storeroom. Their parlor is small but comfortably furnished, and has several daguerreotypes and portraits of their German friends hanging on the walls. They were glad to see us. They speak English much better than when I first knew them. They seem much devoted to one another, and make quite a happy group. The ladies were dressed in better taste than usual. We left early, 9 o’clock. They were disposed to complain of me for neglecting to see them for so long. Frederique has a copy of Byron which she is fond of, and we had a literary conversation.
October 5, 1849: My friend, James Morton, Dr. Brandeis, and Mr. Maurice Wehle went into court with me and filed their declaration of intention to become citizens. When asked by me if Francis Joseph was present emperor of Austria, Mr. Wehle replied, “Yes, damn him! I do abjure him!” Wehle was an insurrectionist in the tumult in Prague last year, and was a captain of insurgentsm who were all at least reduced to subjection of Wendis Chgratz and the imperial rule entirely reestablished. I was a while in Dr. Brandeis’ parlor with his and Adolph’s wives and Wehle. The ladies asked me if I would call with them on Miss Corey. I told them my intercourse was suspended there now, but if it were resumed, I would inform them and accompany them.
There is one more entry from October 16 about Maurice Wehle reprinted and then the column stops. Seeing as how the Brandeises didn’t move to Louisville until 1851, there must have been more diary entries about them. (In fact, Alpheus Mason published a couple more in A Free Man’s Life.) Maybe one day I will take a road trip to the Indiana Historical Society and see the diaries for myself.
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Elsewhere in this blog, I discussed Louis D. Brandeis’ boyhood home at 310 E. Broadway, here in Louisville. I remember at the time I first visited the house being surprised that there were no markers outside of the house designating its history. At the time there was only an old newspaper article that was framed and hung in the lobby. And now there is a security guard stationed in the house to keep idlers like me from wandering in and sight-seeing. So the need for some kind of maker outside was more important than ever.
Apparently, Andrew Segal thought so as well. He was a high school student a couple years ago when he saw the house on Broadway as part of a tour. Bemoaning the lack of recognition for one of Louisville’s greatest sons, he started a two year campaign to raise the money and get the state legislature to place a historical marker. That campaign came to fruition on Sunday, December 2 at a public unveiling ceremony of the marker.
The ceremony was well attended with some 30-40 spectators, as well as a number of speakers. As well as Mr. Segal (who is now a freshman at the University of Louisville and a member of the law school’s Harlan Scholars program), there were speeches by Nelson Dawson of the Kentucky Historical Society, Allan Steinberg from Kesher Kentucky, Laura Rothstein, Metro Councilman David Tandy, Charles Tachau (the grandson of Louis’ brother Alfred) and Rabbi Joe Rooks-Rapport. There was even a surprise appearance by someone claiming to be Brandeis himself, who came by to thank the crowd and announce that the Senate had just confirmed his appointment to the Supreme Court. He was about 96 years too late for the announcement, but no one had the heart to tell him. Pictures of the speakers and the plaque are below.
Former Dean of the Louis D. Brandeis School of Law Laura Rothstein
Rabbi Joe Rooks-Rapport and Charles Tachau.
Louisville Metro Councilman David Tandy.
Local thespian Chris Hartman channeled the spirit of Louis Brandeis for the occasion.
Andrew Segal beside the plaque.
The backside of the plaque.
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The subject of Brandeis’ uncle and cousins came up at work recently. There is near the University of Louisville campus a Brandeis Avenue and a Brandeis Elementary school, and the popular assumption is that these are named after Louis D. Brandeis. But, like many popular assumptions, this is incorrect. Brandeis left Louisville when he was 18 and was in many ways forgotten by his native city until a few years before his ascension onto the Supreme Court. Meanwhile, other members of his family rose to prominence in his absence. His father Adolph and his brother Alfred were partners in business, and as wealthy merchants, became well known throughout town. Adolph’s brother Samuel (Louis’ uncle) was one of the premiere doctors in the city and it is he who the street was named after. Samuel’s son Albert Brandeis was, like his cousin Louis, a lawyer. He got an undergraduate degree from Harvard and then a law degree from Columbia University. (It is also possible he took a class or two at the University of Louisville law school.) He became an attorney for the Louisville and Nashville Railroad and apparently did some work for the city’s public schools as Brandeis Elementary is named after him.
Finding out this information led me to dig around for more information about Brandeis’ family. A Google search led to the discovery of a 3 page typed biography of Samuel Brandeis held in the Jefferson County Historical Society in Madison Indiana. As Madison is only an hour’s drive from here, this sounded like an ideal excuse for a road trip.
The story of how the Brandeises emigrated to the United States is a story that has been told many times, most notably in the book The Pilgrims of ’48. Three families, the Brandeises, the Wehles and the Dembitzes decided to come emigrate together to the United States. But first, they sent Adolph Brandeis ahead to scout out various cities. Adolph decided that they should move to Madison, partly because the trade on the Ohio River made Madison seem like a city with a future and partly because Madison seemed immune from the cholera epidemics then sweeping the country. (Adolph proved to be wrong on both counts. Louisville quickly overcame Madison as a commerce center, and cholera would hit Madison a few weeks after the families settled there.) The families moved into Madison in June 1849, but they did not find Madison life to their liking and left a few years later: the Wehles to New York and the Brandeis’ down river to Louisville.
I thought perhaps that since the Brandeises were in Madison for a couple years, the Historical Society might have a few items of interest and I was not disappointed. The friendly and very helpful staff dredged up all kinds of goodies while I was there. Since this post is already running a little long, I’ll just talk about the biography that started in the inquiry in the first place and then discuss the other items in my next post.
The biography turns out to have been written by Samuel’s daughter Florence. A striking person in her own right (those Brandeis genes must have really been something) Florence was one of the first female doctors in Louisville. There is no date attached to it but it appears to have been written shortly after Samuel’s death in 1899. Since it is so short, I figured I would recreate the entire document rather than just synopsize it. Enjoy.
Dr. Samuel Brandeis — born in Prague Austria on December 4th, 1819. His father Simon Brandeis was for many years an extensive manufacturer of Calicoes and chintzes and his mother, a woman of intellect and culture was a guide and inspiration to her ambitious son.
The early education was acquired in the Catholic Gymnasium in his native city and his medical studies were pursued at the University of Vienna where he was a private pupil of the great anatomist, Professor Hyrtal. Dr. Brandeis completed his medical studies in 1845, then engaged in practice in his native city until May of 1849 when for social and political reasons he with a large number of his kin emigrated to the United States.
He settled in Madison Indiana, then a growing river town, was early married to Caroline Wehle of Prague and rapidly acquired a flourishing practice, The prevalence of Cholera in our midst at that time gave him the much longed for opportunity to show his skill and from that [point] on his position was assured. In April of 1852 he removed with his family to Louisville Kentucky in search of more fields to conquer and repeated his successful experiences in Madison. He in the course of years acquired a practice second to none at that time.
His work was that of a general practitioner with a strong leaning towards Obstetrics and Gynecology and he was widely known and acknowledged as a diagnostician pf rare skill.
In 1860 he occupied the chair of Clinical Medicine in the Kentucky School of Medicine but discontinued that work at the outbreak of the Civil War. He served his country as visiting surgeon in the Government Hospitals in Louisville and later was given important work on the examining board of the Pension Department — these duties he filled with zeal and credit to himself.
Dr. Brandeis was always abreast of the times and being a great reader and owing to his familiarity with the French and German languages was usually one to introduce new methods, drugs and instruments to the profession in Kentucky. Thus he was the first man to import the hypodermic syringe and the laryngoscope into his adopted State.
He was an active member of his local, state and National Medical Societies, at one time President of the Board of Health of Louisville, President of the Louisville Clinical Society, and Medical Examiner of several Insurance Companies, besides being a contributor to medical literature and a popular consultant. He was by nature genial and fond of literature and the arts, with a leaning towards music and floriculture.
Dr. Brandeis passed away in his 70th year after a lingering illness due to organic heart disease. He was survived by his devoted wife and six adult children, his son Dr. Richard C. Brandeis of New York having gone before.
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While rummaging through the Brandeis collection a couple years ago, I stumbled upon a February 28, 1936 letter from Joseph McClain, who was then the University of Louisville’s dean of the law school. The letter referenced an earlier letter from Brandeis that, as McClain put it, acted as “primary evidence of the fact that Mr. Justice Brandeis did have a relation, as a student, to the University of Louisville.” The existence of such a letter was news to me. I had never seen it in our collection of Brandeis’ papers and it was not published in Urofsky and Levy’s collection of Brandeis’ letters.
The story of Brandeis’ education has always been that he attended Male High School here in Louisville, but then finished his high school education at an academy in Germany, before attending law school at Harvard. His name is inextricably linked with University of Louisville because of the interest he took in the school during the 1920′s and 30′s. In an effort to build up the University, he donated his library and papers and was instrumental in raising money for a new law school building. After he died, his ashes were interred under the building’s portico. In honor of all of Brandeis’ contributions, the law school changed its name in 1997 to the Louis D. Brandeis School of Law.
The students and alumni are proud of the school’s connection with Brandeis, but I felt that it would be even more exciting for them if I could prove that Brandeis was in some way an alumnus of the University. Unfortunately, I couldn’t find the letter. I looked in all of the places in our collection where I thought it could be. McClain’s letter stated that he was sending Brandeis’ letter to the University president’s office for safe keeping. I contacted the office but they couldn’t find it. A similar search with the University Archives also came up empty. Eventually, I stopped looking for it and was left with the hope that maybe one day it would just fall into my lap.
Which is exactly what happened yesterday. As happens so often, I was looking for something else in the collection when I happened to stumbled onto the “lost” letter. (Of course, I was unable to find the letter I was actually looking for. No doubt it will turn up a year from now while I am looking for something else.) Fortunately, given the inscrutability of Brandeis’ handwriting, there was also a transcription of the letter.
The relevant part of the letter reads:
My connection with the University was a constructive one. – Actually I was a student of the Male High School (from the Winter of ’70-’71 to June ’72.) But, at that time, there was a five year course – at the end of the third year an intermediate certificate was given under the University’s name in some way. The degree would have come at the end of the fifth year.
So, it is clear that Brandeis considered himself to be an alumnus of sorts. But the letter leaves a big question: What exactly was the nature of the relationship between Male High School and the University of Louisville? As it turns out, the answer is a bit complicated.
To figure it all out, I consulted the book The First Hundred Years–The Story of Louisville Male High School by Sam Adkins and M. R. Holtzman. (Oddly, there is no publisher or publication date listed in the book.) The University of Louisville was officially chartered by the state of Kentucky in 1846. Primarily just a medical and law school, it absorbed the pre-exisitng Louisville College, which it made its “academical department” (which apparently the equivalent of junior college.) The University built a new building for its law school which it put next to its medical school. The city of Louisville made a power grab around this time however, first taking over the academical department, and then forcibly housing the department in the new law school building. (This forced the law school to scramble into the first of many improvised and temporary settings. This situation lasted until the 1930′s when, as already mentioned, Brandeis helped get a permanent home built.) In 1856, the academical department was formally transformed into Louisville Male High School. However, despite its name, it was still more of a junior college and it was still run by the University. Even after 1861, when the school gained its independence from the University, it was still housed on campus. Also confusing matters is the fact that for a while the school changed its name to the “University of the Public Schools of Louisville.”
So, it would appear that there is no clear answer to the question. Brandeis attended the school a full 10 years after Male was disassociated from the University. Maybe Brandeis attended there while it was called the “University of the Public Schools of Louisville” and confused the names of the two institutions. Or maybe some of the classes of the high school were actually taught at the medical or the law school. At this late date, it is probably impossible to know for sure. At any rate, Brandeis thought of himself as an alumnus of the school and that is probably good enough for the University.
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Is Bigness Really Such a Curse?
Illustration from Harper’s Weekly December 13, 1913 by Walter J. Enright, for Brandeis’ article Serve One Master Only!
Are not these huge trusts large contributing causes to these crimes–unintelligent expressions of social unrest? Is it not irony to speak of the equality of opportunity in a country cursed with their bigness?–Louis D. Brandeis, letter to Paul Kellogg, December 19, 1911.
Last year was the 100th anniversary of the Supreme Court’s decision in Standard Oil Co. v. U.S. (221 U.S. 1) which broke up the Standard Oil trust. In honor of the anniversary, the George Washington University Law School held the 100 Years of Standard Oil Symposium. A recent issue of the Southern California Law Review published the papers from the symposium and one of them heavily featured Brandeis.
University of Arizona College of Law professor Barak Orbach and his colleague Grace Campbell Rebling discuss the influence of Brandeis and William O. Douglas on antitrust regulation in “The Antitrust Curse of Bigness,” 85 Southern California Law Review 605–655. Specifically, they take issue with the belief that size in itself makes a business uncompetitive–an idea central to Brandeis’ (and Douglas’) philosophy. Orbach and Rebling discuss how the rise of Standard Oil and other trusts of the late 1800′s led to the creation of the Sherman Act and several antitrust decisions of the Supreme Court. While Brandeis believed there were many causes of trusts and monopolies, he was especially concerned with how some businesses could become so big they they stifled competition in their fields. His famous phrase “the curse of bigness”–which started out as a chapter title in his book Other People’s Money, before becoming a title of another of his books–caught on with the public and became associated in many people’s eyes as the primary problem of trusts. Orbach and Rebling outline a number of economic theories that have grappled, unsuccessfully, with the size of trusts. Or, as they put it:
[Antitrust] discipline might owe its birth to the fear of size, but this fear has been a burden and a curse on the development of sound antitrust policies.
As an added bonus, the article is accompanied by a number of reproductions of illustrations from various magazines from the progressive era on the subject, like this the James Montgomery Flagg drawing seen on this page which is from the cover of one of the issues of Harper’s Weekly which featured a chapter from Other People’s Money.
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